Vorse

Introduction

May a trial court strike a witness’s live testimony under Evidence Code section 352 because the court concludes the witness is lying? No. Under all but the most limited circumstances, credibility of witnesses is a question of fact to be resolved by the jury. Here, the court invaded that province and exceeded the discretion granted under the code. Because the error was prejudicial, the judgment is reversed.

Background

I. The Dispute

This suit revolved around the acquisition of a business known as Dynatex. David Vorse sued Lewis Sarasy, alleging various causes of action in tort and in contract stemming from Sarasy’s purchase of Dynatex. The complaint alleged that Vorse, Sarasy, and nonparty Donald Schmidt formed a partnership for the purpose of engaging in various business enterprises. The three subsequently decided to acquire Dynatex, with each partner acquiring an ownership interest. When Sarasy alone acquired Dynatex, Vorse sued for damages flowing from Sarasy’s failure to acquire Dynatex on behalf of the partnership.

Sarasy defended, arguing there was no agreement to jointly acquire Dynatex. Instead, Sarasy claimed the three men agreed only to broker…